- Another opportunity for politicians and bureaucrats to play foul
- Income shadows caste, individuals more important than community
- The SC Bench majority judgment on EWS opens pandora box
- Two of the three judges suggest timeline to end reservations of all kinds
Times are changing. The thought process of politicians also has been undergoing transformation. The policy of positive discrimination or affirmation proposed by Dr. Ambedkar is being slowly but steadily watered down. The majority judgment of the five-member bench of the Supreme Court (3-2) on Monday, on the petitions challenging the 103 amendment, has favoured reservations to Economically Weaker Sections (EWS). The judgment, in effect, supported the policy of Modi government which is keen on reconfiguration of political allegiance. However, the judgment has the potential to polarize the society on caste lines which fear was expressed by the dissenting judges. The judgment of the SC Bench is, in a way, a continuation of the ‘creamy layer’ policy pronounced by the apex court in Indra Shawney V. Union of India and others case. The court in 1992 held that the caste is a class of citizens and if a caste as a whole is educationally and economically backward, reservation can be made in favour of such caste. Eight out of nine judges at that time in Shawney case had agreed that creamy layer has to be identified and excluded from reservations.
Justice Bela M. Trivedi and JB Pardiwala emphasised that reservations cannot continue for an indefinite period so as to become a vested interest and to achieve “an egalitarian, casteless and classless” society. The two judges had written their individual views on the subject while concurring with the majority opinion rendered by Justice Dinesh Maheshwari.
This judgment is a deliberate shift towards social inclusion and welfare without diluting, at least for now, the affirmative action in favour of Dalits, Adivasis and OBCs. Caste and social backwardness continue to be of paramount importance but in future, the region and gender beside economic conditions would also be considered. If Mandal recommendations, implemented during VP Singh’s renure three decades ago, affected a shift in political discourse, the present move is sure to be used unscrupulously for political benefit by the powers that be. To neutralize the effect of the judgment in Indraw Shawney case, the government had to bring in the 77th amendment to the constitution to remove the impediments to promotions through reservation system. The 85th amendment was also intended to dilute the apex court judgments in 1995 and 1999 and to neutralize the ‘catch up rule.’
The 103rd amendment passed by the Parliament in 2019, had inserted clauses in Article 15 and Article 16. This amendment allowed the government to grant reservations based on economic backwardness. The Bench has quashed the appeals challenging the amendment. Scheduled Castes, Scheduled Tribes and non-creamy layer Other Backward Classes have been excluded from Article 15(4) and Article 16(4) which enable the government to provide the reservations on account of Economically Weaker Sections. As a result, the ceiling on 50 percent reservation has been breached and the reservation will be made individually rather than as a group as was the process so far. Justice Ravindra Bhatt and the outgoing CJI Justice UU Lalith have dissented with the judgment. The three other judges Justices Dinesh Maheswari, Bela Trivedi and JB Pardiwala assented.
Generally, the Indian judiciary has been concerned with merit rather than the affirmative action. The judges are inclined to help or protect the interests of general category. Since 1973 when it was pronounced that anything that violates the basic structure of the constitution shall not be maintained, only five out of more than 60 constitution amendments were struck down.
Justice Maheswari avers that this policy of reservations for the EWS would further strengthen the preamble of the constitution whose goal is achieving social justice. The judges recognized poverty as a fundamental source of backwardness. Justice Trivedi said the legislatures best understand the needs of the people. While Justice Maheswari observed that those sections which are enjoying reservations at the exlusion of others cannot complain when they are excluded in this reservation policy. However, Justice Bhat commented that the bulk of the poor people are in SCs and STs and their exclusion is not proper.
When it comes to breaching of the ceiling of 50 percent reservation, the majority judges cited what Justice Chinnappa Reddy said on this issue. Justice Reddy said, “For a court to say that reservations should not exceed 40 per cent or 50 per cent or 60 per cent would be arbitrary and the Constitution does not permit us to be arbitrary.” At this rate, the affirmative action policy would be diluted. Moreover, the Rs.8 lakh ceiling to declare one as economically weaker would make 90 per cent of the population eligible for reservations meant for EWS. This category should get benefit even in private educational institutions. Knowing the Indian bureaucracy as we do, there is absolutely no guarantee that only the deserving will get the benefit by producing the relevant certificate. Identifying economic backwardness is a tricky affair. The officers designated to give away such certificates and the politicians who can influence the bureaucrats will have another opportunity to make illegitimate money.
Ultimately, the reservation criteria shifted from caste to income and community to individual. On 31 January 2019, the union government notified the EWS criteria as beneficiaries must not be covered by SC/ST/OBC reservations and their gross family income must be below Rs. 8 lakh. They should not claim benefits under the EWS quota if their families possessed certain specific assets. When the apex court asked the government what was the basis for fixing the income ceiling, the government said it would appoint a three member committee to fix the ceiling afresh. The government is vague in this aspect even today.